broadcasting and telecommunications
GG42691-2019 GOV NN1148 Memorandum of Agreement between the Competition Commission of South Africa and the Independent Communications Authority of South Africa
On 6 September 2019, the Department of Economic Development issued a notice that the Competition Commission of South Africa ("Commission") and the Independent Communications Authority of South Africa ("ICASA") entered into a Memorandum of Agreement ("MOA") on 29 August 2019.
The Competition Act 89 of 1998 provides that where a sector regulator (in this instance, ICASA) has jurisdiction in relation to prohibited practices and merger controls, concurrent jurisdiction is established. In these instances the Commission can conclude a MOA in order to facilitate cooperation between the sector regulator and the Commission. This is to ensure consistent application of the principles of the Competition Act.
The Commission and ICASA have concurrent jurisdiction in respect of competition matters in terms of the Electronic Communications Act 36 of 2005 and furthermore, one of the functions of ICASA is to promote competition within the ICT, postal and broadcasting sectors.
This new MOA replaces the MOA previously concluded in 2002 between the Commission and ICASA. The old MOA was criticised for creating uncertainty, giving rise to forum shopping, and the duplication of market review efforts.
The new MOA aims to, amongst other things
effectively coordinate the exercise of concurrent jurisdiction powers when taking decisions;
apply a consistent interpretation and application of the principles of competition when exercising their powers and their respective functions in terms of their enabling legislation;
consult each other regarding the definition of markets for electronic communications, broadcasting and postal services and determining whether there is effective competition in these markets, and undertaking enquiries regarding dominance or significant market power in such markets;
and timeously providing each other with the necessary information in respect of the investigation of anti-competitive practices, regulation of mergers and acquisitions, as well as research developments or studies within the electronic communications markets.
Dr Keabetswe Modimoeng, acting Chair of ICASA, stated before the signing ceremony that "the MOA is an important milestone between the Commission and the Authority in establishing and formalising our relationship on the uniform enforcement of competition legislation."
GG42675-2019 GEN NN463 Invitation to Nominate Candidates for the South African Broadcast Production Advisory Board
On 30 August 2019, the Department of Communications issued a notice inviting interested parties to nominate candidates to be considered for appointment to the South African Broadcast Production Advisory Body ("SABPAB").
The SABPAB will advise on how the development, production and display of local television and radio content can be supported. The SABPAB, as part of this effort, will make recommendations to the Minister to enable the Minister to determine policy and strategies to give effect to the production and display of local content; financing strategies to support the production of local content; supply-side measures and initiatives to support the production of local content; and policies to enhance the production of local content for the multichannel and digital broadcasting environment.
The SABPAB shall comprise a cross-section of representatives, such as, government and regulatory bodies; the broadcasting sector; the content production, intellectual property, copyrights, broadcast cybersecurity and cinematographic sectors; and consumer bodies.
A nomination should be accompanied by the curriculum vitae of the candidate(s), which must specifically include the following information, the candidate's
identity number; gender; race; designation and responsibilities; contact details (postal, email address, telephone numbers and fax number) ; qualifications and field of expertise; current and past service on boards; areas of expertise; and names and contact details of two referees.
Nominations should be submitted to the Minister of Communications no later than 31 September 2019, for the attention of the Acting Director-General of Communications, addressed to Ms Ntombi Makwetu, by email to SABPABnominations@doc.gov.za.
The supporting documents (terms of reference) can be accessed here or on the following websites:
Department of Communications website: www.doc.gov.za Government Communications and Information Systems (GCIS) www.gcis.gov.za
in the news
ICASA fines MTN for price hike
ICASA has fined MTN R5 million (of which R2 million is suspended for three years) for failing to comply with the notification rules regarding tariff adjustments. MTN had increased its price of 1GB Whatsapp monthly bundle to R30 before the end of the seven day notice period required in terms of the regulations. MTN had, in fact, provided notice to ICASA and had requested leniency in respect of the seven day waiting period. ICASA stated at the time of the ruling that MTN's contravention had undermined the Authority's efforts to reduce the cost of communications and the implementation of consumer protection regulations aimed at promoting transparency and prohibiting unfair business practices in the provision of communication services. MTN will likely seek to have the ruling reviewed in the high court, arguing that the price increase was a matter of urgency and necessity because the low-cost Whatsapp plan was degrading the quality of its 3G network. This is evidenced by the fact that Whatsapp usage on the MTN network increased by 300% in just eight weeks after the low-cost bundles were introduced, bringing with it a consequent increase in demand on MTN's 3G network.
ICASA To Issue An Information Memorandum on the Licensing Process for High Demand Spectrum
ICASA announced on 19 September 2019, that it will be issuing an Information Memorandum on the licensing for high demand spectrum by 31 December 2019. The Information Memorandum will set out the licensing process for the International Mobile Telecommunications Spectrum (otherwise referred to as `high demand spectrum'). This follows on from the Communications and Digital Technologies Minister's publication of the Policy on High Demand Spectrum and Policy Direction on the Licensing of a Wireless Open Access Network ("Policy Direction"). ICASA is enjoined, in terms of the Electronic Communications Act, 2005 to consider policies and policy directions issued by the Minister. As a result, ICASA is considering the Policy Direction, which will inform the Authority's position to be outlined in the Information Memorandum.
ICASA noted that the issuing of the Information Memorandum constitutes an important step in the licensing process to ensure the release of high demand spectrum to give effect to government's policy objectives of "ensuring broadband access for all, transformation of
the ICT sector, lower data costs, promote competition and ensure inclusive economic growth." The spectrum in question can be used by operators to expand their 4G/LTE mobile broadband networks which will allow those operators to improve indoor network coverage in urban areas and provide wider coverage in rural areas at a lower cost.
The Information Memorandum is intended to provide guidance to stakeholders and prospective applicants on the process and criteria to be applied by ICASA in the licensing of the spectrum. Acting Chairperson, Dr Keabetswe Modimoeng stated also that "through the publication of the Information Memorandum, the Authority further provides an opportunity to stakeholders and prospective applicants alike to make inputs and representations on the proposed licensing process, associated criteria and timelines" adding also that "the licensing of high-demand spectrum is one of the critical components to facilitate deployment of digital infrastructure to ensure that all South Africans realise and participate meaningfully in the opportunities emanating from the Fourth Industrial Revolution."
RICA inconsistent with Constitution
Amabhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional Services
The South Gauteng High Court has held that parts of the Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 ("RICA") are inconsistent with Constitution. RICA permits the interception of communications of any person by authorised state officials subject to prescribed conditions.
The media group, amaBhungane, filed the application in 2017 after it had come to light that a journalist, Sam Sole's communications were intercepted while he was reporting on the corruption investigations against Jacob Zuma.
In dealing with the preliminary issues, Judge Roland Sutherland, in his judgment handed down on 16 September 2019, noted that several examples of abuse of RICA were cited in the founding affidavit. Sam Sole, together with a State Prosecutor, Advocate Downer, provided first-hand evidence of being spied upon. It was further noted by Judge Sutherland that no rebuttal, explanation or effort to justify the interception was attempted by the respondents.
The court found that the practice of bulk interception is unlawful and invalid for want of a law authorising it to take place. Furthermore, it was held that RICA, including various of its sections, is inconsistent with the Constitution and accordingly invalid. The impugned sections of RICA were inconsistent with the Constitution and accordingly invalid to the extent that
it fails to prescribe a procedure for notifying the subject of the interception;
it fails to prescribe an appointment mechanism and terms for the designated judge which ensure the designated judge's independence;
it fails to adequately provide for a system with appropriate safeguards to deal with the fact that the orders in question are granted ex parte (i.e. without notice to the affected person);
it fails to prescribe proper procedures to be followed when state officials are examining, copying, sharing, sorting through, using, destroying and/or storing the data obtained from interceptions; and
it fails to address expressly the circumstances where a subject of surveillance is either a practising lawyer or a journalist.
The declarations of invalidity were suspended for two years to allow Parliament to cure the defects, however some changes are required with immediate effect. One of the immediate changes is that a person who has been under surveillance must be notified within 90 (ninety) days' after the surveillance has been terminated. The other immediate change, is the requirement that disclosure must explicitly be made of the fact that a person is a lawyer or a journalist when an application is made to conduct surveillance.
More on mass surveillance generally:
Mass communication monitoring was thrust into the spotlight in 2013 when former US intelligence contractor, Edward Snowden leaked details of large-scale surveillance tactics used by the United States. Bulk surveillance (or interception) is an internationally accepted method of strategically monitoring transnational signals, in order to screen them for certain cue words or key phrases. The national security objective is to ensure that the State is secured against transnational threats. It is done through the tapping and recording of transnational signals, including, in some cases, undersea fibre-optic cables. The authorities in the UK and South Africa have publicly admitted to using bulk interception capabilities, apparently conducting bulk interception of internet traffic by tapping undersea fibre-optic cables landing in the UK and South Africa respectively.
In South Africa, the joint affidavit of the South Africa intelligence agencies (the Minister of State Security, the Office for Interception of Centres, the National Communications Centre and the State Security Agency) in the amaBhungane case discussed above, admit to "the tapping or recording of transnational signals, including in some cases, undersea fibre optic cables", and further claim to intercept any communications that emanate from outside South African borders and which pass through or end in South Africa. The reason cited for this bulk interception is the protection of national security. However, it is admitted that the interception methods are not capable of distinguishing between foreign and domestic communications.
In the UK, the case began in 2013 after Snowden revealed that probes had been attached to the undersea fibre optic cables landing in the UK. That case was brought before the UK Investigatory Powers Tribunal ("IPT"), where it was held that both UK bulk interception and UK access to US bulk surveillance were lawful in principle, but it was later held by the IPT that these practices were unlawful due to the secrecy of the legal framework governing
these practices. In March 2015, Privacy International (together with nine other NGOs) filed an application to the European Court of Justice challenging the UK's surveillance program and the findings of the IPT. The European Court of Justice ruled that the UK government's mass interception program violates the rights to privacy and freedom of expression, however the ruling was not extended to the UK's intelligence sharing regime and did not condemn mass interception as fundamentally disproportionate. Privacy International, in February 2019, were granted a request to refer the matter to the Grand Chamber of the European Court of Human Rights. The UK government, in its submission to the Grand Chamber, described the process of collection, filtering, selection for examination and examination of communications intercepted in bulk.
These revelations are an important step toward transparency and regulation, although it is unfortunate that both the UK and South African authorities only admitted to their processes as a result of court cases brought against them.
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